[History: Tribal Act #96-14.319, enacted by Tribal Council
on February 20, 1996; as amended by Tribal Act #96-14.375, enacted
by Tribal Council on July 2, 1996; amended by Tribal Act #01-19.1065,
enacted by Tribal Council in Special Session on October 10, 2001;
and amended by Tribal Act #08-26.1905, enacted by Tribal Council on
April 30, 2008.]
(a) The purpose of this ordinance is to assist Tribal members in obtaining
mortgage financing for the purchase of one-family, owner-occupied
principal residences on certain leasehold estates located upon Tribal
trust lands, by prescribing procedures relating to recordation, foreclosure
and evictions in connection with leasehold mortgages given to secure
loans made by mortgagees pursuant to: the Section 184 Housing Loan
Guarantee Program administered by the U.S. Department of Housing and
Urban Development (HUD); the direct loan program administered by the
U.S. Department of Veterans' Affairs (VA) under 38 U.S.C. § 3761;
the similar program administered by the Rural Economic and Community
Development Service of the U.S. Department of Agriculture; the Native
American Housing Pilot Initiative (the "Initiative") offered by the
Federal National Mortgage Association ("Fannie Mae"); financing offered
by the Federal Home Loan Mortgage Corporation ("Freddie Mac"); and/or
other conventional lending programs. In order to facilitate the purpose
of these programs, this ordinance authorizes a limited waiver of sovereign
immunity by the Tribe with respect to all controversies or claims
arising out of, or relating to, the leasehold mortgage agreements
and the leases described herein.
(b) In addition, Tribal members, in seeking mortgage financing for the
purchase of one-family, owner-occupied principal residences on certain
leasehold estates located upon Tribal trust lands, cannot use the
value of the trust property, which by definition is owned by the United
States in trust for the tribe and cannot be sold, pledged, mortgaged,
or otherwise encumbered without an Act of Congress, in the appraisal
process that is typically used by banks or other real estate agents.
[History: Tribal Act #96-14.319, enacted by Tribal Council
on February 20, 1996; and as amended by Tribal Act #96-14.375, enacted
by Tribal Council on July 2, 1996.]
(a) "Lease" shall mean the residential ground lease or other agreement
for use of Tribal trust land on which a leasehold mortgage has or
will be given.
(b) "Leasehold Estate" shall mean a leasehold estate established pursuant
to a lease between the Tribe, as lessor, and a member of the Tribe,
as tenant.
(c) "Leasehold Mortgage" shall mean the first-lien mortgage of a leasehold
estate given to secure a mortgage loan made by a mortgage pursuant
to the HUD 184 program, the VA and RECD programs, and/or Fannie Mae's
Initiative.
(d) "Leasehold Mortgage Foreclosure Proceeding" shall mean a proceeding
in the Tribal Court (i) to foreclose the interest of the mortgagor(s),
and each person or entity claiming through the mortgagor(s), in a
leasehold estate on which a leasehold mortgage has been made by the
mortgage pursuant to the HUD 184 program, the VA and RECD programs,
and/or Fannie Mae's Initiative; and/or (ii) to assign such leasehold
estate to the mortgagee or the mortgagee's successors or assigns.
(e) "Lessor" shall mean the Tribe. The Tribe shall be the beneficial
or equitable owner of certain Tribal trust land underlying a leasehold
estate on which a leasehold mortgage has been given. The lessor shall
include the successor(s) or assign(s) of such lessor.
(f) "Leasehold Mortgage Agreement" shall mean that certain agreement
indicating participation by the mortgagor(s) in one of the federal
mortgage loan guarantee programs to the mortgagee and the Tribe, and
approved by the Secretary of the Interior.
(g) "Mortgagor" shall mean any member of the Tribe who has executed a
leasehold mortgage, including any heir(s), successor(s), executor(s),
administrator(s) or assign(s) of such member.
(h) "Mortgagee" shall mean the approved lender under any leasehold mortgage
made pursuant to the leasehold mortgage agreement. This definition
also includes, without any consent by Tribe, any subsequent holder,
whether by assignment, succession or otherwise, of the original mortgagee's
right, title or interest in and to the leasehold mortgage and/or the
leasehold estate.
(i) "Nuisance" shall mean maintenance on the leasehold estate of a condition
which:
(1) Unreasonably threatens the health or safety of the public or neighboring
land users; or
(2) Unreasonably and substantially interferes with the ability of neighboring
real property users to enjoy the reasonable use and occupancy of their
property.
(j) "Subordinate Lienholder" shall mean the holder of any lien, including
a mortgage, perfected subsequent to the recording of a leasehold mortgage
under this ordinance; provided, however, such terms shall not include
the Tribe with respect to a claim for a Tribal leasehold tax.
(k) "Tenant" shall mean any person who occupies Tribal trust land under
a leasehold estate.
(l) "Tribal Court" shall mean the Tribal Court of the Grand Traverse
Band of Ottawa Indians.
(m) "Tribal Recording Clerk" shall mean the person designated by the
Tribe to perform the recording functions required by this document
or any deputy or designee of such person.
(n) "Tribe" shall mean the Grand Traverse Band of Ottawa and Chippewa
Indians.
(o) "Tribal Trust Lands" shall mean land, title to which is held by the
United States of America in trust for the Tribe and/or which may be
subject to a restriction against alienation imposed by federal treaty,
statute or Executive Order.
(p) "Unlawful Detainer Action" shall be a suit brought before the Tribal
Court to terminate a tenant's interest in a leasehold estate
and/or to evict any person from occupancy of such leasehold estate.
(q) "Waste" shall mean spoil or destruction of land, buildings, gardens,
trees or other improvements on the leasehold estate which result in
substantial injury to the lessor's interest in the leasehold
estate.
(r) "Writ of Restitution" is an order of the Tribal Court:
(1) Restoring an owner, lessor, mortgagee (or other successor in interest)
to possession of a leasehold estate subject to a leasehold mortgage;
and
(2) Evicting a tenant or other occupant from such property.
[History: Tribal Act #96-14.319, enacted by Tribal Council
on February 20, 1996; and as amended by Tribal Act #96-14.375, enacted
by Tribal Council on July 2, 1996.]
A leasehold mortgage recorded in accordance with the recording
procedures set forth in this ordinance shall have priority over any
lien not perfected at the time of such recording and any subsequent
lien or claim (except a lien or claim arising from a Tribal tax assessed
against a leasehold estate subject to the leasehold mortgage).
[History: Tribal Act #96-14.319, enacted by Tribal Council
on February 20, 1996; and as amended by Tribal Act #96-14.375, enacted
by Tribal Council on July 2, 1996.]
(a) The Tribe recognizes that the appropriate offices for recording leases
and leasehold mortgages is the Bureau of Indian Affairs Area Land
Titles and Records Office in addition to the Tribal Court, and the
Tribe agrees that the agreement shall require that the leases and
leasehold mortgages shall also be recorded in the county recorder's
office in the Michigan county in which the leasehold estates are located.
(b) The Tribal Recording Clerk shall maintain in the Tribal Court, or
other designated office, a system for the recording of leasehold mortgages
and such other documents as the Tribe may designate by law or resolution
including, without limitation, the lease.
(c) The Tribal Recording Clerk shall endorse upon any lease and leasehold
mortgage or other document received for recording the following:
(1) The date and time of receipt of the lease and the leasehold mortgage
or other document;
(2) The filing number, to be assigned by the Tribal Recording Clerk,
which shall be a unique number for each lease and leasehold mortgage
or other document received; and
(3) The name of the Tribal Recording Clerk receiving the lease and leasehold
mortgage or other document.
Upon completion of the above endorsements, the Tribal Recording
Clerk shall make true and correct copies of the lease and leasehold
mortgage or other security instrument and shall certify each copy
as follows:
Grand Traverse Band of Ottawa and Chippewa Indians: ss.
I certify that this is a true and correct copy of a document
received for recording. Given under my hand and seal this _____ day
of _____.
The Tribal Recording Clerk shall maintain such copies
in the records of the recording system and shall return the original
lease and leasehold mortgage or other document to the person or entity
that presented the same for recording.
(d) The Tribal Recording Clerk shall also maintain a log of each lease
and leasehold mortgage or other document recorded in which there shall
be entered the following:
(1) The name(s) of the mortgagor(s) of each leasehold mortgage, identified
as such;
(2) The name(s) of the mortgagee(s) of each leasehold mortgage, identified
as such;
(3) The name(s) of the grantor(s), grantee(s), or other designation of
each party named in any other documents including the lease;
(4) The date and time of receipt;
(5) The filing numbers assigned by the Tribal Recording Clerk; and
(6) The name of the Tribal Recording Clerk receiving the lease, leasehold
mortgage or other document.
(e) The certified copies of the leases and leasehold mortgages and other
documents and the log maintained by the Tribal Recording Clerk shall
be made available for public inspection and copying.
[History: Tribal Act #96-14.319, enacted by Tribal Council
on February 20, 1996; and as amended by Tribal Act #96-14.375, enacted
by Tribal Council on July 2, 1996.]
Upon the default of the mortgagor(s), and upon expiration of
any applicable cure periods under a leasehold mortgage, the mortgagee
or its successors and assigns, may commence a leasehold mortgage foreclosure
proceeding in the Tribal Court as follows:
(a) By filing a verified complaint:
(1) Citing authority for jurisdiction of the Tribal Court;
(2) Naming the mortgagor(s) and each record owner claiming through the
mortgagor(s) subsequent to the recording of the leasehold mortgage,
including each subordinate lienholder (except the Tribe with respect
to a claim for a Tribal tax on the leasehold estate subject to the
leasehold mortgage), as a defendant;
(3) Describing the leasehold estate subject to the leasehold mortgage;
(4) Stating the facts concerning:
(A)
The execution of the lease and the leasehold mortgage;
(B)
The recording of the leasehold mortgage; and
(C)
The alleged default(s) of the mortgagor(s) and any other facts
as may be necessary to constitute a cause of action;
(5) Having appended as exhibits true and correct copies of each promissory
note, lease, leasehold mortgage, and, if applicable, assignment thereof
relating to such leasehold estate;
(6) Including an allegation that all relevant requirements and conditions
prescribed in the federal mortgage loan guarantee program and/or leasehold
mortgage agreement and the lease have been complied with by the mortgagee
or its successors or assigns; and
(7) Otherwise satisfying the requirements of the Tribal Court.
(b) By obtaining a summons, issued as in other cases, requiring the mortgagor(s)
and each other person or entity claiming through the mortgagor, as
defendants, to appear for a trial upon the complaint on a date and
time specified in the summons, and filing a copy of such summons with
the Tribal Court.
[History: Tribal Act #96-14.319, enacted by Tribal Council
on February 20, 1996; and as amended by Tribal Act #96-14.375, enacted
by Tribal Council on July 2, 1996.]
The laws of the Tribe governing service of process and all other
matters relating to the conduct of Tribal Court proceedings shall
apply to any leasehold mortgage foreclosure proceeding pursuant to
this ordinance.
[History: Tribal Act #96-14.319, enacted by Tribal Council
on February 20, 1996; and as amended by Tribal Act #96-14.375, enacted
by Tribal Council on July 2, 1996.]
(a) Prior to the entry of a judgment of foreclosure of a leasehold mortgage
pursuant to this ordinance, any mortgagor or any subordinate lienholder
may cure the default(s) under the leasehold mortgage.
(b) Any subordinate payments made by such subordinate lienholder to cure
such default(s) must comply with the terms of the mortgage, plus interest
on such amounts at the rate stated in the promissory note evidencing
the subordinate lien.
[History: Tribal Act #96-14.319, enacted by Tribal Council
on February 20, 1996; and as amended by Tribal Act #96-14.375, enacted
by Tribal Council on July 2, 1996.]
If the alleged default(s) have not been cured, and if the Tribal
Court should find for the mortgagee or its successors or assigns,
the Tribal Court shall enter judgment:
(a) Foreclosing the leasehold estate of the mortgagor(s) and each other
defendant named in the complaint upon whom proper and timely service
has been made, including each such subordinate lienholder; and
(b) Assigning such leasehold estate to the mortgagee or the mortgagee's
assignee, including Fannie Mae.